Opinion
No. 60854-1-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 05-2-36470-0, Linda Lau, J., entered October 12, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Agid, J., concurred in by Grosse and Appelwick, JJ.
UNPUBLISHED OPINION
A jury found that Tri Hoang died because of Dr. Grace Dy's negligent medical treatment. Dy appeals from the September 12, 2007 judgment, arguing that the trial court erred by (1) awarding damages based on the jury's determination of what Tri would have accumulated from his stocks and stock options had he lived, (2) excluding evidence about what Tri's estate did with his stocks and stock options, and (3) excluding evidence about Tri's brother Joseph's earnings after September 2005 for the purpose of determining Joseph's dependence on Tri at the time of Tri's death.
We refer to all the Hoang siblings by their first names to avoid confusion.
FACTS
Tri was born in 1974 and died in August 2004. He was the second oldest of the eight Hoang children and moved to Seattle with his older sister, Ahn, in 1997. Tri and Ahn agreed to support two of their younger siblings, Joseph and Anna, at the request of their parents. Joseph moved from California when he was 16 to live with Ahn. Tri served as a father figure to Joseph, who looked up to Tri as a mentor. Tri paid Ahn $400 per month for Joseph's support until he graduated from high school and moved in with Tri. Joseph did not pay for food, rent, or community college costs. Tri's parents did not provide financial support for Joseph, who was 20 when Tri died. Joseph was earning about $600 every two weeks at the time of Tri's death. He was supporting himself at the time of trial and had been since September of 2005.
Until his death, Tri worked at aQuantive, an online advertising and internet technology holding company, as a Storage Area Network (SAN) expert. aQuantive used stock option grants and an employee stock purchase plan (ESPP) to reward employees who stayed with the company. A stock option is a future right to purchase a share at a set value, called the strike price. Put another way, "[t]he strike price is the price that [Tri] would have to pay for the shares if he exercised the option to buy them."
At the time of his death, Tri held 22,141 shares worth of vested aQuantive stock options from multiple option grants and 4,854 shares of unvested stock options. A vested stock option is one that Tri had the right to "exercise" or buy at the strike price. aQuantive's 1999 Stock Incentive Compensation Plan Nonqualified Stock Option Letter Agreement (Letter Agreement) allows the personal representative of the estate to exercise a deceased employee's vested options but provides that the right to exercise those options terminates no later than one year after the employee's death. Had Tri lived, his rights to buy shares of aQuantive stock at the determined strike prices would not have expired until 2010, 2011, and 2013 respectively. After Tri's death, his estate exercised his options to buy 22,141 shares for $123,886 and then sold those shares on June 28, 2005, for $370,862. The unvested portion of Tri's stock options terminated automatically upon his death in accordance with the Letter Agreement. Tri also owned 17,642 shares of aQuantive stock that he purchased through the ESPP when he died. His estate sold all of his ESPP shares in June 2005 for $304,318. Microsoft had expressed interest in buying Tri's division in 2004, and it ultimately bought aQuantive for $66.50 per share on August 21, 2007.
Exhibit 18 shows that aQuantive granted Tri 33,041 vested stock options while he worked at aQuantive. Exhibit 20 shows that in May 2003, Tri exercised his right to buy 10,900 shares and then sold those shares to buy the Cherry Street house with Ahn. Thirty three thousand forty-one (33,041) minus 10,900 equals 22,141.
The 1999 Letter Agreement set the vesting schedule, providing that 100 percent vesting would occur four years after the vesting base date.
Thirteen thousand five hundred (13,500) shares would have expired on September 11, 2010; 6,500 shares would have expired on February 22, 2011; 9,000 on May 30, 2011; 3,375 on December 26, 2011; and 666 shares would have expired on January 1, 2013.
In November 2005, Tri's sister, Marie Hoang, brought both wrongful death and survival actions against Dy, among others, as the personal representative of Tri's estate. Dy moved for partial summary judgment, asking the court to dismiss the wrongful death claim. She argued that Marie could not bring a wrongful death claim on behalf of Joseph because he was not substantially financially dependent on Tri as required by the wrongful death statutes. After the trial court denied Dy's motion, Marie moved in limine to exclude evidence about Joseph's earnings after September 2005. The trial court ruled that "evidence of Joseph's earnings more than a year after his brother died is irrelevant on the question of whether Joseph was financially dependent on him." After the trial, the jury found that Joseph was substantially financially dependent on Tri for support. The jury awarded Joseph $1,500,000 in undifferentiated economic and non-economic damages and awarded Tri's estate $100,000 in non-economic damages.
Jury Instruction 17 stated:
The plaintiff has the burden of proving that Joseph Hoang, Tri Hoang's brother, was substantially financially dependent upon him for support.
Dependent means a substantial need by Joseph Hoang and a substantial financial recognition of that need by Tri Hoang. The support may include money, goods, services or other material benefits. In determining whether Joseph Hoang was substantially financially dependent on Tri Hoang, you should consider the extent of Tri Hoang's financial contributions to his brother and the time over which such support was provided,
Substantial financial dependence must be based on support, as defined in this instruction, at the time of death and not the promise of future contributions.
Jury Instruction 19 stated that the jury should consider:
1. Economic Damages:
You should consider what benefits of monetary value, including money, goods and services Tri Hoang would have contributed to Joseph Hoang had [he] lived.
2. Non[-]economic Damages:
You should consider what Tri Hoang reasonably would have been expected to contribute to Joseph Hoang in the way of love, care, companionship, and guidance had Tri Hoang lived.
Jury Instruction 18 defined those damages as the "pain, suffering, anxiety, emotional distress and fear experienced by [Tri] prior to his death as a result of defendant['](s) negligence."
Marie's theory of damages under her survival act claim was that Tri would have held on to his stock and stock options through the date when Microsoft acquired aQuantive and that Dy's negligence caused his estate to lose what he would have accumulated had he lived. At trial, Tri's supervisor at aQuantive, Richard Vaughn, testified that he told Tri that aQuantive would be "highly successful;" Tri told Vaughn that he enjoyed working at aQuantive and that he believed the company would do well. Tri understood that aQuantive shares were undervalued and agreed with Vaughn that holding onto aQuantive stocks and stock options was a good idea. Vaughn thought Tri was an excellent employee who would have been nominated for a stock options award known as a "retention grant" had he lived.
The employee who replaced Tri had to hire two additional people to do the work Tri had done, in part because of aQuantive's growth.
The retention grant was designed to encourage valuable long-term employees to remain at aQuantive. Tri's replacement received a stock option grant.
Marie's economist, Dr. Lowell Bassett, testified that Tri's vested and unvested stock options would have been worth $1,491,352 to Tri after taxes, had he lived to receive the additional stock options that his replacement received and not sold any stock options before Microsoft acquired aQuantive. Bassett testified that the shares of Tri's ESPP stock would have been worth $977,214 to him after taxes if he held on to those shares through Microsoft's purchase. Bassett estimated Tri's total stock and stock option holdings would be worth $2,488,566. The jury determined that Tri's estate suffered economic damages of $2,500,000 resulting from the loss of aQuantive stock-related holdings. After the verdict, the trial court reduced the jury's award by the amount the estate recovered when Marie sold Tri's aQuantive stock holdings, yielding a judgment of $2,091,779 for stock-related damages. The trial court excluded evidence about the estate's stock sale because it was irrelevant to what position Tri would have been in. Dy moved for relief from judgment and/or a new trial, which the court denied.
Mark Cohen, Dy's economist, testified that the vested and unvested stock options would have been worth $302,338 after taxes and consumption. Cohen stated that the additional stock options would have been worth $117,925 after taxes and consumption if Tri stayed with aQuantive for the seven years it would have taken those additional options to vest. Cohen's total stock option estimate was $420,263 after taxes, assuming that Tri did not sell shares to buy a house and actually received additional stock options. Cohen's figure is lower than Bassett's estimate primarily because he assumed that Tri would have consumed 71.8 percent of the value of the options he exercised and sold, had he lived.
Bassett multiplied 17,642 shares times $66.50 and reduced the total by 15 percent to account for capital gains tax. Cohen valued the ESPP stocks at $281,015 after consumption and taxes.
Cohen's stock option total was $701,278 ($420,263 plus $281,015).
Jury Instruction 18 stated that:
If your verdict is for the plaintiff, then you must determine the amount of money that will reasonably and fairly compensate Tri Hoang's estate for such damages as you find were proximately caused by the negligence of the defendant(s).
. . .
1. Economic damages:
a. The net accumulations lost to his estate. In determining the net accumulations, you should take into account Mr. Hoang's age, health, life expectancy, occupation, and habits of industry, responsibility and thrift. You should also take into account Mr. Hoang's earning capacity, including his actual earnings prior to death and earnings that reasonably would have been expected to be earned by him in the future.
b. In considering the effect of Tri Hoang's aQuantive [stockholdings] upon his net accumulations, you may consider federal income tax.
DECISION
Dy challenges the trial court's evidentiary rulings and the denial of her posttrial motions. We review a trial court's evidentiary rulings and orders denying a motion of a new trial or relief from judgment for abuse of discretion. A trial court abuses its discretion when its decision is manifestly unreasonable or rests on untenable grounds.
Aluminum Co. of Am. v. Aetna Cas. Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000); Hume v. Am. Disposal Co., 124 Wn.2d 656, 666, 880 P.2d 988 (1994), cert. denied, 513 U.S. 1112 (1995); Smith v. Arnold, 127 Wn. App. 98, 105, 110 P.3d 257 (2005).
Thompson v. Hanson, 142 Wn. App. 53, 64, 174 P.3d 120 (2007) (citations omitted), review granted, 164 Wn.2d 1024 (2008).
Marie sued Dy under both the wrongful death and survival statutes which create distinct causes of action. The wrongful death statutes allow a claim for the benefit of surviving relatives of the deceased to compensate them for the losses they sustain as a result of the decedent's wrongful death. The survival statutes preserve the causes of action the deceased could have maintained, compensating the estate for what the decedent would have accumulated had the death not occurred.
Federated Servs. Ins. Co. v. Norberg, 101 Wn. App. 119, 126, 4 P.3d 844 (2000), review denied, 142 Wn.2d 1025 (2001).
Id. RCW 4.20.010 provides, in pertinent part, that "[w]hen the death of a person is caused by the wrongful act, neglect or default of another his personal representative may maintain an action for damages against the person causing the death . . .," and RCW 4.20.020 provides, in pertinent part, that "such action may be maintained for the benefit of the parents, sisters, or brothers, who may be dependent upon the deceased for support, and who are resident within the United States at the time of his death."
Otani v. Broudy, 151 Wn.2d 750, 762, 92 P.3d 192 (2004); Wagner v. Flightcraft, Inc., 31 Wn. App. 558, 568, 643 P.2d 906, review denied, 97 Wn.2d 1037 (1982). RCW 4.20.046(1) states, in part, that:
All causes of action by a person or persons against another person or persons shall survive to the personal representative of the former and against the personal representatives of the latter, whether such actions arise on contract or otherwise, and whether or not such actions would have survived at the common law or prior to the date of enactment of this section. RCW 4.20.060 provides:
No action for personal injury to any person occasioning death shall abate, nor shall such right of action determine, by reason of such death, if such person has a surviving spouse, state registered domestic partner, or child living, including stepchildren, or leaving no surviving spouse, state registered domestic partner, or such children, if there is dependent upon the deceased for support and resident within the United States at the time of decedent's death, parents, sisters, or brothers; but such action may be prosecuted, or commenced and prosecuted, by the executor or administrator of the deceased, in favor of such surviving spouse or state registered domestic partner, or in favor of the surviving spouse or state registered domestic partner and such children, or if no surviving spouse or state registered domestic partner, in favor of such child or children, or if no surviving spouse, state registered domestic partner, or such child or children, then in favor of the decedent's parents, sisters, or brothers who may be dependent upon such person for support, and resident in the United States at the time of decedent's death.
I. Survival Act Damage Award
On the survival act claim, the trial court entered a damage award for the stocks and stock options that Marie claimed were lost to the estate as a result of Dy's negligence, basing damages on the jury's determination of what Tri would have accumulated had he survived. Dy argues that the net accumulations from the stock and stock options were not "lost" because they passed to the estate upon Tri's death: "Tri never had a claim that he could have maintained against Dr. Dy for loss of stocks and stock options that were never lost, but which passed to his estate at his death, and thus no such claim survived his death." And Dy claims that the difference between what Tri would have made and what the estate realized was not a loss caused by her negligence. Marie contends that Tri could have maintained claims for damages flowing from the "forced" exercise and sale of stocks and stock options and that those claims survive his death, allowing his estate to recover for what Tri would have accumulated had Dy not been negligent.
A. Stock Option Damages
Under Knox v. Microsoft Corp., a plaintiff has a claim for damages flowing from the premature exercise and cancellation of stock options. Dy concedes that her negligence caused the cancellation of Tri's unvested option to buy 4,854 shares in accordance with the automatic termination provision of the Letter Agreement, and that Tri's estate was properly allowed to recover damages flowing from the termination of those shares. During his life, Tri did not have a claim against Dy for the cancelled options because the unvested options had not yet been cancelled. Had Tri survived Dy's negligence but lost his unvested options as a result, he could have maintained a claim for damages against Dy under Knox. Thus, Dy correctly concedes that Tri's estate should be allowed to recover for what Tri would have accumulated from the unvested options had he not died.
92 Wn. App. 204, 962 P.2d 839 (1998), review denied, 137 Wn.2d 1022 (1999).
Knox also applies to a claim for damages flowing from the premature exercise of Tri's vested options caused by Dy's negligence. If Tri had lived and continued to work at aQuantive, he would have had until 2010-2013 to exercise his vested rights to buy 22,141 shares of aQuantive stock. Because Dy's negligence caused Tri's death, his estate had only one year to raise the money to buy Tri's shares under the Letter Agreement. Tri could have used the six to nine years between 2004 and the expiration dates to raise the $121,866 required to buy those shares at the strike price, or Tri could have used $121,866 for other purposes during that time. And unlike Tri's estate, Tri would have had the right to benefit from an increase in the value of aQuantive stock without exposure to the risk of a stock price collapse.
The jury effectively found that Tri would have continued to work at aQuantive, and this finding is supported by Vaughn's testimony. Dy offered no evidence to the contrary.
Dy concedes that Tri's estate had to exercise the vested stock options within one year of his death.
As an Internal Revenue Service regulation explains, "[t]he option privilege in the case of an option to buy is the opportunity to benefit during the option's exercise period from any increase in the value of property subject to the option during such period, without risking any capital." 26 C.F.R. § 1.83-7(b)(3).
Dy argues that even if she caused the estate to lose Tri's six to nine year exercise period, her negligence did not force the estate to prematurely sell the stock options. But Knox recognizes that forcing a premature exercise causes damages, even if the opinion does not fully explain what those damages are. Here, the loss of Tri's right to play the stock market risk free for six to nine years damaged the estate. Had Tri lost only that right because of Dy's negligence, he could have maintained a claim for damages flowing from the premature exercise of those stock options. That claim survives his death under the survival statutes. Accordingly, the trial court did not abuse its discretion by allowing recovery of stock option damages.
Marie concedes that probate law does not require that the personal representative liquidate the stock holdings of the decedent.
Dy contends that if her negligence damaged Tri's estate, the damages should have been limited to the expenses directly related to the logistical hardships of a premature exercise. For example, Dy urges that the damages should be limited to the amount of interest the estate would have paid on a $121,866 loan to buy the stock options, or the "appreciated value of however many stocks had to be sold to exercise the options," if the estate can prove that it needed to take out a loan or sell some stock to afford the exercise price. Dy also proposes tying the amount of damages to the negative tax consequences of an early exercise.
Dy does not explain why the estate would have suffered adverse tax consequences if it exercised the options without selling the shares.
Marie counters that the fundamental principle of tort law — making the injured person "as nearly whole as possible through pecuniary compensation" — requires that Tri's estate receive compensation based on the position Tri would have been in had he lived. Here, Marie offered evidence that Tri would have stayed with aQuantive and held on to his options had he lived. Dy did not offer any evidence to the contrary or effectively rebut Marie's evidence. Accordingly, the measure of damages awarded, based on the question of what position Tri would have been in had he lived, is fully consistent with the evidence offered and the fundamental "make whole" principle of tort law.
DeNike v. Mowery, 69 Wn.2d 357, 371, 418 P.2d 1010, 422 P.2d 328 (1966).
Kim v. O'Sullivan, 133 Wn. App. 557, 564, 137 P.3d 61 (2006) ("The purpose of tort damages is to place the plaintiff in the condition he would have been in had the wrong not occurred."), review denied, 159 Wn.2d 1018 (2007).
B. Employee Stock Purchase Plan Damages
In contrast to its rights to the stock options, Tri's estate had the same rights he did to the 17,642 shares of aQuantive stock he actually owned at the time of his death. The ESPP stocks were an asset like Tri's house. Dy points out that had Tri not died, he "could [not] have maintained an action against Dr. Dy for the increase in value of any other asset like a house, a vacation home, or a vintage car collection that had passed to his Estate and appreciated in value after the Estate sold it." If Tri had survived Dy's negligence but lost his rights to accumulate appreciation from an increase in his ESPP stock value as a result, he could have maintained a claim against Dy for that loss. But Marie does not offer any evidence showing that Dy's negligence caused the estate to lose any ESPP-related appreciation that Tri could have accumulated had he lived. Accordingly, Tri's estate does not have a claim under the survival statute for damages resulting from the premature sale of Tri's ESPP stock. The trial court abused its discretion by entering a judgment for damages resulting from the "lost" ESPP stock.
Contrary to Marie's assertions, this is not an issue about contributory negligence, failure to mitigate, or superseding cause. Rather, the relevant issue is whether Marie could maintain this claim under the survival statute when she does not provide evidence that the estate was in a different position from Tri with respect to Tri's ESPP stock.
Marie cites Federated Servs. Ins. Co. v. Norberg for the proposition that net accumulations recoverable in survival actions typically include what the decedent would have earned in the future. Because Tri was able to buy his aQuantive stock through a program designed to reward employees, Marie argues that those stocks, like the stock options, should be treated as future earnings recoverable by the estate. But Tri's ownership of the ESPP stock as part of an employee compensation plan does not make the income from that investment "earnings" any more than the appreciation of Tri's house would be future earnings if he bought the house with money from his aQuantive salary. In contrast to the stock option plan, Tri's ownership interests in the ESPP stock were independent of his continued employment with aQuantive.
101 Wn. App. 119, 126-27, 4 P.3d 844 (2000), review denied, 142 Wn.2d 1025 (2001).
Testimony from the experts in this case supports this distinction. Both economists concluded that future accumulations from Tri's stock options would be treated as earned income, whereas appreciation from stock should be treated as capital gains. Net accumulations recoverable in survival actions typically include earnings that were lost to the estate as a result of the defendant's negligence. But here, the appreciation in value from Tri's ESPP stocks does not qualify as "earnings," and Marie did not explain how the ESPP stock appreciation was lost to the estate because of Dy's negligence. Accordingly, the trial court erred by denying Dy's posttrial motion to remit damages attributable to losses from the sale of stock held by Tri at the time of his death and later sold by the estate. We reverse the trial court's September 12, 2007 entry of judgment and October 12, 2007 order denying relief from judgment to the extent the trial court awarded ESPP stock-related damages and remand for recalculation of the judgment consistent with this opinion.
Federated Servs. Ins. Co., 101 Wn. App. at 126.
It appears from the record on appeal that, on remand, the trial court should reduce the judgment by $692,896. Seventeen thousand six hundred forty-two (17,642) shares times $66.50 per share equals $1,173,193. Report of Proceedings (RP) (August 13, 2007) at 144-45; Exhibit 109-006, 109-008. That amount should be reduced by 15 percent to account for capital gains tax. RP (August 13, 2007) at 144-45. One million one hundred seventy three thousand one hundred ninety-three dollars ($1,173,193) times 15 percent equals $175,979. Id. One million one hundred seventy three thousand one hundred ninety-three dollars ($1,173,193) minus $175,979 equals $997,214. Id. And because the trial court offset the award by the amount gained when the estate sold the stock, that money should be added back to the judgment. The portion of the offset attributable to the estate's gain on the sale of Tri's ESPP stock is $304,318. Thus, the total reduction should be $692,896 ($997,214 minus $304,318). These calculations use Basset's numbers because the jury awarded stock related damages of $2,500,000 when Basset estimated damages at $2,488,566.
II. Evidence of the Estate's Sale of Stock and Stock Options
Dy argues that the trial court should have allowed the jury to consider evidence of the estate's sale of Tri's stock and stock option to determine the amount of damage, if any, caused by her negligence. Marie asserts that evidence of the estate's sale is irrelevant to the question of what Tri would have done with the stocks and stock options had he lived. ER 402 bars the admission of evidence that is not relevant. "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Here, the estate sustained recoverable damages when it lost the stock option rights that Tri would have had. As discussed above, the relevant factual determination for tort action damages is the position the injured party would have been in had the negligence not occurred. The actions of Tri's estate took after the negligence occurred are not relevant to the question of what position Tri would have been in had the wrong not occurred. And because Marie cannot maintain a claim for damages related to the ESPP stock that passed to the estate, evidence of the estate's sale is not relevant to that portion of the survival act claim. Thus, the trial court properly excluded evidence of the estate's sale of stock and stock options.
ER 401.
III. Evidence of Joseph's Earnings
Dy claims that the trial court abused its discretion by excluding evidence of Joseph's earnings after September 2005 for the purposes of allowing the jury to determine if Joseph was substantially financially dependent on Tri at the time of Tri's death. A personal representative may bring a wrongful death claim on behalf of a surviving sibling if that sibling was substantially financially "dependent upon the deceased person for support." Damages may include compensation for the loss of monetary contributions and services, love, affection, care, companionship, society, and consortium provided by the decedent to the statutory beneficiary. And under the survival of actions statute, a personal representative may recover non-economic damages suffered by the decedent before death on behalf of a sibling who was dependent on the deceased person for support. Here, the jury determined that Joseph was substantially dependent on Tri at the time of Tri's death and awarded damages for Tri's pre-death suffering and Joseph's loss of love, care, companionship, and guidance from Tri.
RCW 4.20.020; Masunaga v. Gapasin, 57 Wn. App. 624, 628, 790 P.2d 171 (1990). Masunaga states that the "dependent for support" provision of RCW 4.24.010 is analogous to the "dependent on deceased for support" provision of RCW 4.20.020. Both provisions require that the support be financial and substantial. Masunaga, 57 Wn. App. at 628. RCW 4.24.010 allows dependent parents a cause of action for their child's injury or death.
Bowers v. Fibreboard Corp, 66 Wn. App. 454, 460, 832 P.2d 523, review denied, 120 Wn.2d 1017 (1992).
RCW 4.20.046(1) provides, in pertinent part, that "the personal representative shall only be entitled to recover damages for pain and suffering, anxiety, economic distress, or humiliation personal to and suffered by a deceased on behalf of those beneficiaries enumerated in RCW 4.20.020." RCW 4.20.020 defines the beneficiaries of the wrongful death act, RCW 4.20.010.
Marie asked the jury to award $0 for non-economic losses.
Marie argues that evidence of Joseph's later earnings is not relevant under the unchallenged jury instruction, which required the estate to prove that Joseph was substantially financially dependent on Tri's substantial financial support at the time of Tri's death. Dy says the evidence of Joseph's earnings after September 2005 is probative of what Joseph could have been making at the time of Tri's death and would have shown that he did not truly have a substantial financial need at that time. Under Masunaga, substantial financial dependence is determined based on the need of the beneficiary and the contribution to that need by the deceased at and before death, not the expected need and contribution toward that need after death. Evidence of Joseph's ability to support himself may have tended to show that Joseph could have been capable of supporting himself while Tri was alive. But Joseph's ability to support himself after Tri died was not disputed and the amount that Joseph earned does not establish that fact any better than Joseph's testimony that he became financially independent after September 2005. And evidence that a college-aged adult got a job to support himself is only minimally probative of his financial dependence on his "parent" the year before. Ample evidence shows that Tri made substantial financial contributions towards Joseph's support and attaching a dollar value to Joseph's later earnings could have confused a jury about the nature of the non-economic damages sought. The trial court judge reasonably concluded that the probative value of the earnings evidence was substantially outweighed by the potential for confusing the issues and needless presentation of cumulative evidence.
Masunaga v. Gapasin, 57 Wn. App. 624, 629, 790 P.2d 171 (1990) (citing Grant v. Libby, McNeill Libby, 145 Wash. 31, 37, 258 P. 842 (1927)).
See Kanton v. Kelly, 65 Wash. 614, 618, 118 P. 890 (1911); Grant, 145 Wn. App. at 37. In both cases, evidence that beneficiaries were capable of work were factors in the decision that there was not a showing of substantial financial dependence. But the courts in both cases considered other factors not present here in reaching that conclusion. In Grant, the decedent contributed occasional baby-sitting earnings before death which was not enough to show the beneficiary had a substantial need. And in Kanton, the beneficiaries owned homes, rental property, real estate, and a business and were employed until shortly before trial. They therefore did not have a substantial need. 65 Wash. at 618. Here, the evidence shows that Joseph was capable of working to support himself, but that he received more than the occasional contribution of money and had no significant assets to his name before Tri's death.
Marie asked the jury to award $0 in economic damages.
We affirm in part, reverse in part, and remand for recalculation of damages.